Tuesday, June 29, 2010

Read My Lips: No Judicial Activism

By Mike Dorf

During his acceptance speech for the 1984 Democratic Presidential nomination, Walter Mondale made the following statement:

Whoever is inaugurated in January, the American people will have to pay Mr. Reagan's bills. Taxes will go up, and anyone who says they won't is not telling the truth. Let's tell the truth -- Mr. Reagan will raise taxes and so will I. He won't tell you. I just did.

That didn't work out so well for Mondale and indeed, it is practically a truism of American politics that promising tax increases--even desperately needed tax increases--is an excellent way to lose an election. To be clear, I don't think tax increases are needed now. I'm with Buchanan and Krugman in thinking we desperately need deficit spending right now. But that's a wholly different point.

Here I want to draw an analogy between the Mondale phenomenon and the ongoing debate over constitutional interpretation. In my latest FindLaw column, I conclude by drawing a contrast between Justice Stevens (speaking for living Constitutionalists generally) and Justice Alito (speaking for the majority and for formalists more generally) in McDonald v. Chicago. Stevens, I note, says that some measure of value judgment is inevitable in decisions taken under the rubric of substantive due process, and because he thinks (and I agree) that incorporation of the Bill of Rights is a subset of substantive due process, this means that the majority is relying on substantive value judgments in saying that the Second Amendment is incorporated against the states. The majority in McDonald essentially says that the incorporation question is one of determining positive law. It asks a question about the values of the American people (are they "deeply rooted" or "fundamental"?) and thus does not call for judges to use their own values.

In this story, the living Constitutionalists are Mondale and the formalists are Reagan (or as suggested by the title of this post, Bush I). My fear is that the results have turned out the same in the domain of constitutional interpretation as in the domain of taxes and politics. One side is saying "we're doing something you don't like, but so are the other guys." The other side is saying "they're doing it but we're not." Given this choice, voters (in the case of elections) and citizens more broadly (with respect to judicial role) tend to prefer the second viewpoint. Why?

If the public clearly understood that taxes do need to go up sometimes or that judging inevitably involves some element of subjective judgment, then they would presumably prefer the truth-tellers to the dissemblers. However, economics and law are both sufficiently technical and mysterious to the uninitiated--and in both fields experts take a wide range of views--that the public who want lower taxes or judges who will simply "apply the law objectively" can choose to support the politicians and prospective Justices who tell them what they want to hear.

Interestingly, Democratic nominees for elective office and to the Supreme Court are beginning to learn the Mondale lesson. It's true that Obama ran for President planning to raise taxes for high earners, and even that opened him to the charge that he would "raise taxes," but he could successfully counter by repeatedly emphasizing that he would not raise taxes on the middle class. Meanwhile, both then-Judge Sotomayor and, based on the first couple of days of hearings, SG Kagan, have taken something like the formalist line that as Justices their job is to put their own subjective views aside.

Now there is a sense in which this is clearly right and even banal: Where one's values conflict with the law, a judge must follow the law rather than her values. (I'm assuming the entire legal system isn't evil. In that circumstance, a kind of judicial civil disobedience might be warranted. Robert Cover wrote about this phenomenon with respect to slavery and Ronald Dworkin addressed the issue in the context of non-Nazi judges in the Third Reich.) But of course, the issue more commonly arises in cases in which the law does not provide a clear answer. As to those cases, the liberal/realist position is that judges can't help but give vent to their values, to some extent. The conservative/formalist position is that the judge's subjective values don't properly play a role even in those cases.

If current trends continue, we will eventually have a Court filled with two classes of Justices: 1) formalists who say that their values don't influence their decisions, and they may even believe that, but if so they will be mistaken; and 2) living Constitutionalists who think that every judge's values play an irreducible role in judicial decision making but had to hide that view to get confirmed.

11 comments:

I think it is worth distinguishing between two things that you do not clearly separate: subjective value judgments and objective value judgments. It is one thing for a judge to use *her own* values as the basis for a judicial decision. It is quite another for a judge to appeal to *objective* values as the basis for her decision. The first kind of appeal is not kosher. But you seem to think that it is either desirable or inevitable. This may be the realist position, but it is not, I think, the best liberal view.

The basic problem with McDonald is not the reasoning that the right to keep and bear arms is fundamental (a piece of reasoning that concerns objective, not subjective, values--leaving aside the enquiry into whether the relevant right is "deeply rooted in this nation's history and tradition", an enquiry that is absurd and offensive). The problem is Heller, which found that there is such an individual right, notwithstanding the fact that the first clause of the Second Amendment is false, and hence that the Amendment itself has no application. (No matter how you understand the relevant terms, whether originalistically or living-constitutionally, it is just not true that a well regulated MILITIA is NECESSARY to the security of a free state.)

I either don't understand or disagree with what you say here, so I'll simply unpack what I meant. Where the Constitution's text, well-established precedent, or some other objective source (such as a consensus in positive law that can be taken to express a longstanding popular consensus) identifies a value as fundamental, then yes, it is meaningful to speak of it as "objectively" fundametal--not in the sense that it is "really" fundamental in some metaphysical sense but simply in the sense that we can point to evidence of fundamentality outside of an individual judge's value system. The difficulty is that (as Justice Souter stressed in his Harvard speech), most hard cases pit constitutional values against one another. The legal realist view (with which I mostly agree) is that in these cases, the different weights that different judges place on different values account for the different outcomes they reach. Thus, in CLS v Martinez, the liberals (including, for these purposes, Justice Kennedy) placed greater weight on the value of nondiscrimination, while the conservatives placed greater weight on what they perceived to be claims of expressive association and religious liberty. I do not take a position on whether this phenomenon is desirable; because there is overwhelming evidence that it is inevitable, there is little point to talking about whether things would be better if human beings did not act this way.

It seems to me that we can draw a clear distinction between finding only that rights enumerated in the Constitution are fundamental (which is as objective a test as you can get) versus finding that both enumerated and unenumerated rights are fundamental (which may lead to substantial subjectivity).

The plurality's judgment is consistent with the first approach, although I gather that it jumps through the Glucksberg "deeply rooted in the Nation's history and tradition" hoop. (Even this isn't that troubling to me, since, if I were applying that test, I would treat the enumeration of a right in the Bill of Rights as strong, if not conclusive, evidence that it meets the test. To my knowledge, the conservatives on the Court have never recognized a new non-enumerated right as "deeply rooted.") Unlike Sam, I think that the Glucksberg test is better than most alternatives, because it's more objective than most.

Having said that, I would dispense with substantive due process altogether, both because it's an oxymoron and because, as the Court noted in Glucksberg, it's "necessarily" "subjective" to a certain degree. Instead, I'd incorporate all of the Bill of Rights under the Privileges and Immunities Clause. I haven't read all of Justice Thomas's dissent, but it appears to do this position justice; Justice Black's dissent in Adamson v. California also makes a strong case (albeit from the drafters', not the ratifying public's, perspective).

The foregoing analysis assumes that Heller is correct, which the Court accepted for the purposes of McDonald.

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